By Bamidele Aturu
Rivers State is on fire, literally and otherwise. But that is not really an accurate statement. It is better to say that Rivers State is the new epicentre of the fire that is slowly but steadily engulfing Nigeria. The state has, it would seem, displaced the North-East as the possible weakest link in the tired chain that holds Nigeria together as a federation.
The latest fire in that beleaguered state was ignited when on 9 July, 2013 five members of a 32-member House of Assembly claimed that they had impeached the Speaker of the House, ‘elected’ their own Speaker after allegedly suspending 15 other members of the House. Naturally, the act was resisted by the other members of the House and their cronies. As expected, the resistance led to unbelievable acts of assault and battery in which the mace was not only broken but became a veritable assault weapon. So violent was the fateful sitting of 9 July that some of the members of the House had to be rushed to the hospital for treatment. The drama continued the following day. Supporters of the Governor who had converged on the premises of the House, apparently in solidarity with the members in the majority, were tear-gassed for refusing to leave on the orders of the police. There are allegations that some teargas canisters found their way into the Governor’s Lodge. The latest happenings in Rivers, therefore, offer us another unpleasant opportunity to reflect deeply on some of the undying issues that have confronted our seeming perpetual infantile democracy.
Legislative Immunity and Impunity
Given the rampancy with which Nigerian lawmakers have resorted to pugilism in order to settle differences, it seems many of them believe that they are immune from criminal proceedings for violating the penal laws in the precincts of the Houses. Of course, let us assume that the violent behaviour of the lawmakers is premised on ignorance as a very lenient way to view their galling acts of unrestrained barbarism. Without prejudice to a few truly honourable members of our various legislative houses, the truth of the matter is that our lawmakers are a product of a violent anti-democratic process. We cannot tire of reaching this conclusion. The evidence stares us starkly in the face. Politics in our country no matter what anyone says is dominated by people who have either failed to earn a living decently or are only interested in easy money.
We must therefore seize the opportunity to make it clear that the very law under which the lawmakers derive their limited immunity puts it beyond any peradventure that any legislator who assaults or obstructs a member or officer of the House is not immune from criminal prosecution. The relevant section of the law bears quoting extensively for the avoidance of any doubts whatsoever. Section 21(1) (b), (c ) and (4) of the Legislative Houses (Powers and Privileges) Act, cap., L 12, Laws of the Federation of Nigeria, 2004 states emphatically thus:
(1) Any member of a Legislative House who-
(b) assaults or obstructs a member of the Legislative House within the Chamber or precincts of the House; or
(c ) assaults or obstructs any officer of the Legislative House while in the execution of his duty
Shall be guilty of contempt of the Legislative House
(4) Nothing in this section contained shall be construed to preclude the bringing of proceedings, civil or criminal, against any member in respect of any act or thing done contrary to paragraph (b) or (c ) of subsection (1) of this section.
It is therefore clear that if the police have neglected to make arrest and to prosecute those hoodlums we saw on our television sets, it is not because they are immune; it is simply that the police are either complicit or ignorant of the law. If the former, then they are unworthy of their uniforms or commissions as the case may be; if the latter, then they should be told plainly that the law does not excuse their ignorance. They could be making themselves liable subsequently for the tort of the breach of statutory duty. The law is certain and in this instance inflexible. It is that assaulting another member of a House is a crime that is inexcusable and legally unacceptable.
Another common misconception among our lawmakers is that they can at will rely on the provisions of the Rules of Procedure of the various Houses to suspend the Constitutional provision on quorum. In the specific case of Rivers State can 5 members in a 32-member House suspend the provision of the Constitution that prescribes quorum? The answer is clearly in the negative. Section 96(1) of the Constitution that provides that ‘the quorum of a House of Assembly shall be one third of all the members of the House’ cannot be altered or suspended by any member of the house or faction of the House or even by all the members of the House. The reason is pretty obvious. The only procedure for altering the Constitution is prescribed by section 9 of the Constitution. Thus, any other method of altering the provisions of the Constitution is illegal, null and void. The point therefore is that it is legally impermissible and wrong for any segment or faction of a House to suspend section 96 of the Constitution.
The consequence of the position that the provision of the Constitution on quorum cannot be suspended is that at least 11 members must be present before any valid resolution of the House to even consider the impeachment of a Speaker can be valid. In other words, a sitting of members of the House cannot be regarded as the sitting of the House unless and until there are 11 members present in the House. If those who gather in the House are less than 11, as in the Rivers case under discussion, the most charitable way they can be described is that a group of lawmakers are gathered together, but certainly not that the House of Assembly of Rivers State created by section 90 is in session. Where such a group embarks on acts of assault and battery, they can only be described as a gathering of hoodlums, lawbreakers or villains of the worst variety. No more, no less.
Now, if a set of members of a House not forming a quorum cannot sit as a House of Assembly known to the Constitution, it stands to reason that they cannot even proceed to impeach the Speaker of the House. In any case, in order to impeach a Speaker there must be strict compliance with section 92(2)(c) which unambiguously provides that a Speaker can only be removed from office by a resolution of the House of Assembly of not less than two-thirds majority of the members of the House. Again, in the Rivers State’s case, in order to impeach the Speaker at least 21 lawmakers must vote for his removal. Anything outside this is legislative brigandage. The sort of animalism that makes only 5 members of a House make a claim that they have impeached a Speaker in spite of the Constitutional provision referred to makes one feel ashamed to be a Nigerian. The earlier this nonsense is checked by the police the better for all of us.
There have been allegations that the current Commissioner of Police in Rivers State, Joseph Mbu, has been in cahoots with the forces opposing the State Governor, Rotimi Amaechi. This raises again the need for the states to have their own Police Services. One often hears the incorrect description of the State Governors as the Chief Security Officers of their states. That description certainly does not owe its existence to the Constitution. The State Governors as far as security matters are concerned are truly not better than glorified prefects. Section 215 of the Constitution is our authority for this conclusion. Although section 215(4) empowers a State Governor to give lawful directions to the Commissioner of Police in the state with respect to the maintenance and securing of public safety within the state as he may consider necessary, there is a proviso to the effect that before carrying out any such directions the Commissioner of Police may request that the matter be referred to the President or such Minister of the Government that the President may authorize to give directions to the police. It is therefore crystal clear that the Commissioner of Police is not ultimately answerable to the governor of a state.
But we should be honest to admit that the matter is not as simple as just having State Police Services. We need first to deal with the feudal culture that is ingrained in the consciousness of our politicians. Unless we uproot one way or the other this culture nothing stops the state governors from also using State Police to intimidate the minority within the state. The woeful and abysmal fraud that takes place all over the country in all the elections conducted by the State Independent Electoral Commissions forcibly cautions us to be balanced when making a case for State Police Services. The truth is that these politicians are all steeped in the culture of emasculating their opponents and only have recourse to democratic sloganeering whenever they are at the receiving end. We should work out a formula that allows State Police Services to exist side by side with a federal police. The Constitution should delineate the functions and jurisdiction of each police and the conditions for the intervention of Federal Police in cases of blatant repression of minorities by State Political authorities within the states.
The inescapable conclusion that one reaches with the embarrassing happenings in Rivers State is that our democracy is endangered not as a result of underdeveloped laws but principally because we have crude politicians who lack democratic culture and temperament. And the unfortunate thing is that they abound in all the parties without any exception. Politicians will not save our country, our people will. The earlier we begin to act as citizens and retake our country the better for all of us. But in the interim, it would be a nice thing if the Inspector General of Police can show us some respect by sending an acting Commissioner of Police to Rivers State pending the outcome of the Panel that he set up to investigate allegations of partisanship against the Commissioner of Police in Rivers State.
•Aturu, Constitutional lawyer, wrote from Lagos.